EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 15473/89

Hildegard and Monika KLAAS

against

THE FEDERAL REPUBLIC OF GERMANY

REPORT OF THE COMMISSION

(adopted on 21 May 1992)

TABLE OF CONTENTS

                                                                 PAGE

I.    INTRODUCTION

      (paras. 1 - 20) . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5 - 15). . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 16 - 20) . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 21 - 76). . . . . . . . . . . . . . . . . . . . . . . 4

      A.   The particular circumstances of the case

           (paras. 21 - 68) . . . . . . . . . . . . . . . . . . . . 4

           a.    The first applicant's arrest

                 (paras. 21 - 23) . . . . . . . . . . . . . . . . . 4

           b.    Proceedings against the first applicant

                 (paras. 24 - 29) . . . . . . . . . . . . . . . . . 4

           c.    Proceedings against Police Officers B. and W.

                 (paras. 30 - 33) . . . . . . . . . . . . . . . . . 6

           d.    Compensation proceedings

                 (paras. 34 - 68) . . . . . . . . . . . . . . . . . 6

      B.   Relevant domestic law and practice

           (paras. 69 - 76) . . . . . . . . . . . . . . . . . . . .12

III.  OPINION OF THE COMMISSION

      (paras. 77 - 124) . . . . . . . . . . . . . . . . . . . . . .14

      A.   Complaints declared admissible

           (para. 77) . . . . . . . . . . . . . . . . . . . . . . .14

      B.   Points at issue

           (para. 78) . . . . . . . . . . . . . . . . . . . . . . .14

      C.   The alleged violation of the first applicant's

           Convention rights

           (paras. 79 - 111). . . . . . . . . . . . . . . . . . . .14

           I.    Article 3 of the Convention

                 (paras. 79 - 107). . . . . . . . . . . . . . . . .14

                 Conclusion

                 (para. 108). . . . . . . . . . . . . . . . . . . .19

           II.   Article 8 of the Convention

                 (paras. 109 - 110) . . . . . . . . . . . . . . . .19

                 Conclusion

                 (para. 111). . . . . . . . . . . . . . . . . . . .19

      D.   The alleged violation of the second applicant's

           Convention rights

           (paras.  112 - 120). . . . . . . . . . . . . . . . . . .19

           I.    Article 3 of the Convention

                 (paras. 112 - 113) . . . . . . . . . . . . . . . .19

                 Conclusion

                 (para. 114). . . . . . . . . . . . . . . . . . . .20

           II.   Article 8 of the Convention

                 (paras. 115 - 119) . . . . . . . . . . . . . . . .20

                 Conclusion

                 (para. 120). . . . . . . . . . . . . . . . . . . .20

      E.   Recapitulation

           (paras. 121 - 124) . . . . . . . . . . . . . . . . . . .21

      DISSENTING OPINION BY MM. NØRGAARD, DANELIUS AND MARXER . . .22

      DISSENTING OPINION BY MM. F. MARTINEZ AND J.-C. GEUS. . . . .22

      DISSENTING OPINION BY Mr. L. LOUCAIDES. . . . . . . . . . . .23

      DISSENTING OPINION BY Mr. M.P. PELLONPÄÄ. . . . . . . . . . .23

      CONCURRING OPINION BY Mr. E. BUSUTTIL . . . . . . . . . . . .24

APPENDIX I       :    HISTORY OF THE PROCEEDINGS. . . . . . . . . .25

APPENDIX II      :    DECISION ON THE ADMISSIBILITY . . . . . . . .26

I.  INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The first applicant, born in 1937, is a German national and a

social welfare officer by profession.  The second applicant is her

daughter, born in 1977.  Both applicants are residing at Lemgo. Before

the Commission they were represented by Mr. M. Stüben, a lawyer

practising in Bad Salzuflen.

3.    The application is directed against the Federal Republic of

Germany.  The Government were represented by their Agents,

Mr. Meyer-Ladewig, Ministerialdirigent, and Mr. Stöcker, Ministerial-

rat, of the Federal Ministry of Justice.

4.    The case relates to the first applicant's arrest on suspicion of

drunken driving on 28 January 1986.  The first applicant was allegedly

beaten up and seriously injured by two policemen in the presence of her

then eight-year-old  daughter.  The applicants invoke Articles 3 and

8 of the Convention.

B.    The proceedings

5.    The application was introduced on 11 July 1989 and registered on

11 September 1989.

6.    On 14 February 1990 the Commission decided to give notice of the

application to the respondent Government and to invite them to present

their observations in writing on its admissibility and merits.

7.    Following the communication of the present application to the

respondent Government, the Federal Ministry of Justice contacted the

North-Rhine Westphalia Ministry of Justice.  The latter referred the

matter to the President of the Detmold Regional Court (Landgericht) and

informed the President of the Hamm Court of Appeal (Oberlandesgericht)

of the application.  The President of the Hamm Court of Appeal sent the

documents concerned to the President of the Hamm Bar Association for

information and, if appropriate, for further action as regards

disciplinary measures.  By letter of 4 April 1990 the Bar Association

requested the applicants' representative to submit observations on the

complaint directed against him.  The disciplinary proceedings were then

suspended pending the outcome of the proceedings before the Commission.

8.    Following an extension of their time-limit, the Government's

observations were submitted on 28 May and 22 August 1990.  The

applicants submitted their observations in reply, also after an

extension of the time-limit, on 28 August 1990.

9.    On 7 March 1991 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application.

10.   The hearing took place on 9 July 1991.  The applicants and the

first applicant's husband attended in person and were assisted by their

lawyer Mr. Stüben, representative.  The respondent Government were

represented by Mr. Stöcker, as Agent, and by Mrs. Chwolik-Lanfermann,

Richterin am Oberlandesgericht, Federal Ministry of Justice, as

Adviser.

11.   As regards the disciplinary proceedings against the applicants'

counsel, the Government's representative, at the hearing, assured the

Commission that the Bar Association would be informed about the

"European Agreement relating to persons participating in proceedings

of the European Commission and Court of Human Rights" granting

immunity, inter alia, to parties and their representatives.  He was

convinced that, as a result of this information, any disciplinary

proceedings pending against the applicants' representative in respect

of the present application would be discontinued or otherwise

terminated.

12.   Following the hearing the Commission declared the application

admissible.

13.   Furthermore, having regard to the above-mentioned declaration

made by the Government's representative at the hearing, the Commission

decided to take no further action in respect of the alleged

interference with the effective exercise of the applicants' right of

petition under Article 25 para. 1 in fine of the Convention.

14.   By letter of 10 September 1991 the respondent Government informed

the Commission that the disciplinary proceedings against the

applicant's representative had meanwhile been finally discontinued.

15.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case.  Active consultations with the parties took

place between 18 July and 30 October 1991.  The Commission now finds

that there is no basis on which such a settlement can be effected.

C.    The present Report

16.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.   C. A. NØRGAARD, President

                 J. A. FROWEIN

                 S. TRECHSEL

                 E. BUSUTTIL

                 A. S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

           Mrs.  G. H. THUNE

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

17.   The text of this Report was adopted on 21 May 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

18.   The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i)    to establish the facts, and

ii)   to state an opinion as to whether the facts found disclose a

      breach by the State concerned of its obligations under the

      Convention.

19.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

20.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A.    The particular circumstances of the case

a.    The first applicant's arrest

21.   On 28 January 1986, at about 7.30 p.m., the first applicant,

accompanied by her then eight-year-old daughter, returned by car from

a visit and stopped at the entrance to the back-yard of the house where

she is living.  The Police Officers W. and B., who had followed her,

charged her with having ignored a red traffic light and driven away.

The first applicant denied this.  Upon further questioning, she

admitted having consumed alcohol and agreed to a breathalyser test. As

repeated tests failed, the police officers informed her that she would

have to accompany them to carry out a blood test.  The first applicant

was subsequently arrested, taken to the local hospital for the blood

test, and then released.

22.   The circumstances of the arrest are disputed between the parties.

The applicants give the following account:  The first applicant, having

unintentionally failed the breathalyser test, agreed to the blood test,

but explained that she wished first to take her daughter to a

neighbour.  One police officer refused this and dragged her to the

police car.  She was warned that she could be charged with having

resisted a public officer in the execution of his duties (Widerstand

gegen die Staatsgewalt).  When she called her daughter, the police

officer said that they would take the child along.  Thereupon she

nevertheless took her daughter by the hand, went to the back door, rang

her neighbour's doorbell and opened the door.  At that moment one

police officer grabbed her, twisted her left arm behind her back while

she was turned around and hit her head on the corner of a window-sill.

The police officers then hand-cuffed her.  She lost consciousness for

a short while.  She recovered at the police car and noticed severe pain

in her left shoulder which was pressed backwards by one of the police

officers.  Eventually she was able to get into the police car and was

driven to the hospital.

23.   The first applicant underwent two medical examinations on 29 and

30 January 1986.  On 11 February 1986, Dr. S., an internal specialist,

certified that he had examined the applicant on 29 January and noticed

abrasions, a bruise on her right cheek-bone of about 3 x 5 cm, large

bruises of about 10 cm to her right arm, considerable problems in

moving her left shoulder, and bruises on that shoulder.  He also stated

that she would suffer long-term problems, in particular with her left

shoulder.  She was certified as ill until 8 February 1986.

Furthermore, on 10 February 1986, Dr. K., the head surgeon at the local

hospital, certified that he had examined the first applicant on

30 January 1986.  His diagnosis was identical to that of Dr. S.  In the

proceedings before the Commission, the first applicant submitted

photographs showing the above-mentioned bruises.

b.    Proceedings against the first applicant

24.   On 29 January 1986, Police Officer B. laid charges against the

first applicant, stating in particular that he and his colleague had

followed the first applicant's car after she had ignored a red traffic

light.  They had intended to check her when she had stopped at the

entrance to a back-yard.  Her attempt quickly to close the roll shutter

of the entrance had failed as they had also parked the police car

there.

25.   The above report continued that, in the course of the check, the

Police Officers had noticed a strong smell of alcohol.  After thorough

explanations, the first applicant had failed correctly to carry out the

breathalyser test four times, and had therefore been informed that she

had to undergo a blood test.  Thereupon she had attempted to escape

into the back-yard.  However, Police Officer B. had been able to grab

her arm and stop her.  The applicant had been very aggressive.  When

informed she was to be arrested, the first applicant had suddenly

calmed down and declared that she would come along after having first

taken her daughter, whom Police Officer B. assumed to be twelve years

old, to a neighbour.  The Police Officers had agreed in order to avoid

a further escalation of the events.  They had followed the applicants

to the back door of the house.  As the first applicant had acted in a

strange manner when opening the back door - the door opened to the

right and she had placed her daughter to the left - the Police Officers

had watched her carefully.  When the first applicant had prepared to

enter the house after her daughter and to close the door, Police

Officer W. had quickly opened the door and Police Officer B. had

grabbed the first applicant's right arm and pulled her outside.  The

child had gone upstairs.

26.   Police Officer B. further stated in his report that, at this

stage, he and his colleague had asked by radio-phone for extra support

to take care of the child.  The first applicant had then started to

strike out in an attempt to free herself.  There had been an

altercation.  Police Officer W. had taken the applicant's left arm and

twisted it behind her back.  Police Officer B. had kept a tight hold

on her right arm.  The first applicant had constantly offered

resistance and further physical force had been necessary to hand-cuff

her in order to avoid further criminal offences, in particular bodily

injury.  On their way to the police car she had attempted to throw

herself to the ground, and he and his colleague had had to take her

arms.  Then, another police car had arrived.  The applicants' neighbour

had offered to take care of the child.

27.   The report finally mentioned that the first applicant had then

been taken to the local hospital, where the blood test had been carried

out.  Furthermore, at the hospital, the Police Officers had noticed a

lacerated wound at the first applicant's right temple.

28.   Upon the above request of Police Officer B., criminal proceedings

were instituted against the first applicant who was suspected of having

resisted a public officer in the execution of his duties, S. 113 of the

German Criminal Code (Strafgesetzbuch), and of drunken driving, S. 316

of the Criminal Code.

29.   On 22 April 1986 the criminal proceedings against the first

applicant were discontinued by the Detmold Public Prosecutor's Office

(Staatsanwaltschaft).  The Office found that there was no reasonable

suspicion concerning drunken driving.  As regards the offence of

resisting a public officer, there was minor guilt and no public

interest in prosecution.  Subsequently, the Lemgo District Court

(Amtsgericht) fined the first applicant DM 500 for having committed the

"regulatory offence" (Ordnungswidrigkeit) of driving with a blood

alcohol content level of more than O.8 per mille, and a one month's

prohibition on driving was imposed.  The District Court found that the

result of the blood-test showed a blood alcohol content level of

0.82 per mille.  The first applicant's appeals were unsuccessful.

c.    Proceedings against Police Officers B. and W.

30.   By letter of 24 April 1986 the first applicant, represented by

her lawyer Mr. Stüben, laid a charge against the Police Officers B. and

W., alleging that they had caused bodily harm to her within the meaning

of SS. 223 and 230 of the Criminal Code.  According to the statements

in the above letter, the Police Officers had held the first applicant's

arms tightly from behind without prior warning and twisted them around

and behind her back, with the effect that she had hit her head on the

stone ledge of the rear entrance to the house inhabited by her and

others, thereby also dislocating her left shoulder and causing a

haematoma on the right upper arm due to a disproportionate use of

force.

31.   Subsequently, the first applicant, having consulted Mr. Stüben,

withdrew her criminal charges.  The Public Prosecutor's Office had

allegedly warned her that otherwise the criminal proceedings against

her would be continued.  The investigations against the Police Officers

were discontinued on 10 July 1986.

32.   On 18 July 1986 the first applicant, represented by Mr. Stüben,

filed a hierarchical complaint (Dienstaufsichtsbeschwerde) with the

Head of the Detmold County Administration (Oberkreisdirektor)

concerning the Police Officers B. and W.  As regards the events in

question it was stated in the above complaint that the first applicant

had rung her neighbour's doorbell and waited for her to come downstairs

when the bearded police officer twisted her arm backwards from behind.

She had then hit her head against a stone window ledge.  With further

physical force, she had been taken to the police car.

33.   On 18 September 1986 the Head of the Detmold County

Administration, acting as Police Department (Kreispolizeibehörde),

dismissed the first applicant's complaint.  In the decision, it is

stated in particular that the police officers had stopped the first

applicant after a traffic offence, noticed a smell of alcohol and

proposed a breathalyser test.  As the test had failed four times, the

first applicant had been informed that she would have to undergo a

blood test. Thereupon she had attempted to run into the back-yard.

However, one of the police officers had been able to seize her arm and

explain that she was provisionally under arrest.  The request to take

her daughter to a neighbour had first been granted.  When the first

applicant had opened the door and tried to enter with her daughter, one

of the police officers had held onto her right arm, whereupon she had

started to kick and to hit with her left hand.  When the police

officers had held onto her she had tried to escape by turning around.

She had to be hand-cuffed.  In the course of the arrest she had not

knocked her head against a window-sill.  The Department concluded that

the use of force had been justified and not disproportionate to the aim

pursued, i.e., the taking of a blood test.

d.    Compensation proceedings

34.   On 10 April 1987 the first applicant instituted proceedings

before the Detmold Regional Court (Landgericht) against the Land

North-Rhine Westphalia and the two Police Officers B. and W., claiming

compensation for the injuries suffered at the time of her arrest.

35.   On 10 July 1987 the Detmold Regional Court, in a partial

judgment, dismissed her action against the Police Officers on the

ground that, in cases of official liability, any personal liability on

the part of the officials concerned was excluded.

36.   On 9 October 1987 the Detmold Regional Court held a hearing in

the case.  The applicants' neighbour, Police Officers B. and W. and the

second applicant were heard as witnesses.

37.   The applicants' neighbour, thirty-five years old, stated that on

28 January 1986 the second applicant had made her come outside.  She

had seen the first applicant, two police officers and a police car.

The light had been poor, but the street lights were on.  She had

noticed the first applicant's stained face, but no injuries.  She had

only noticed later that the first applicant was hand-cuffed.  The first

applicant had complained about pain in her shoulder and asked that the

police officers should remove the hand-cuffs.  She had also put this

question to the police officers who, however, refused the request.  The

first applicant's knees had given way several times.  She had feared

that the first applicant would collapse at any moment.

38.   The applicants' neighbour continued in her testimony that she did

not remember the faces of the two police officers involved in the

incident, but that one of them had been dark-haired and the other one

blond.  She would not recognise Police Officers B. and W.  However, she

remembered that the blond police officer had held the first applicant's

arms from behind.  She had first thought that this police officer had

twisted the first applicant's arm behind her back and held it tight

there; however, this had to be wrong as the first applicant had been

hand-cuffed.  The police officers had explained to her that they were

waiting for colleagues in another police car to take care of the child.

She had informed the police officers that the first applicant's car

would have to be driven out of the entrance.  The police officers then

started looking for the first applicant's keys.  The first applicant

had indicated that the keys were in the corridor.  The applicant's

neighbour then stated that she had found the keys still outdoors, about

1 to 2 m in front of the door.

39.   Upon further questioning, the applicants' neighbour stated that,

judging from the first applicant's behaviour, she must have been in

terrible pain.  The first applicant had complained about pain in her

left shoulder.  While she went to look for the keys, the dark-haired

police officer had asked her whether the first applicant was always so

drunk.  She had not seen whether the blond police officer standing

behind the first applicant had lifted her arms although, while the

police officer was standing behind her, the first applicant had bent

forward suddenly several times.

40.   In his testimony, Police Officer B., twenty-eight years old,

referred in particular to his report of 29 January 1992.  He then gave

the following account:  he and his colleague had noticed the first

applicant's drive through a red traffic light, and, therefore, followed

her in order to file a report.  They had found the first applicant at

an entrance when she had been about to close a roll shutter.

41.   He then described that they had noticed a smell of alcohol, and

how the attempts to carry out a breathalyser test failed.  He mentioned

that he was not sure whether the first applicant had deliberately not

blown for a sufficient time, or whether she had had difficulties.

After having been informed about the necessity of a blood test, the

first applicant had become irritated and had emphasised that she had

her child with her.  Police Officer B. remembered that it was a girl

of approximately twelve years of age.  The first applicant had then

attempted to go away to the back-yard.  He had held her fast and told

her that she was provisionally under arrest.

42.   Police Officer B. continued in his testimony that he and his

colleague had intended to call for support to come and take care of the

child.  The first applicant wanted her child to be taken to a

neighbour.  They therefore accompanied the first applicant to the door

at the end of the courtyard.  He was at that time not holding onto her.

The first applicant had opened the door, pushed the child standing in

front of her into the corridor and attempted to enter the house as well

and to close the door behind her and to shut the two police officers

out.  As he and his colleague had already had the feeling that the

first applicant had this intention his colleague W. had managed to open

the door again in time.  He, Police Officer B., had grabbed the first

applicant's right arm.  The first applicant had not yet entered the

house, but the door had been between her and his colleague W.

43.   According to Police Officer B., his colleague W. had to overcome

the first applicant's resistance in opening the door and he had

forcibly to keep a tight hold onto her and pull her outside.  He had

grabbed the first applicant's right arm with his right hand and pulled

her outside.  She had resisted and used both her arms and legs to hit

out.  His colleague W. had then taken the first applicant's left arm

and twisted it behind her back.  After some difficulties they managed

to get the first applicant's arms hand-cuffed behind her back.  Taking

her arms, they had found it difficult to get her back to the street,

as she attempted to throw herself to the ground.  Since being pulled

out of the corridor, the first applicant had shouted more or less

hysterically, but she had made no complaints about pain.

44.   Furthermore, Police Officer B. stated that the first applicant

had not knocked her head against a wall when she was pulled outside.

Having been shown two photographs of the first applicant with injuries

at her right cheek, he remembered having mentioned such an injury in

his report of 29 January 1986.  He could not, however, explain the

cause of this injury.

45.   Upon further questioning, Police Officer B. confirmed that the

first applicant had not complained about any pains in her shoulder.

She had requested that the hand-cuffs be removed, a request they had

refused as they had feared further difficulties.  He could not remember

whether he or his colleague W. had kept hold of the first applicant in

the street until they had put her into the police car.  He further

could not remember whether the first applicant had bent forward

suddenly, e.g. as a result of a sudden jerking on her hand-cuffs and

the resulting pain.

46.   Upon further questioning, Police Officer B. also confirmed being

certain that the first applicant did not knock her head at a wall.  He

said that she did not have this injury when they had first talked to

her.  He assumed that the first applicant might have got this injury

during the altercation when the hand-cuffs had been put on.

47.   The Regional Court then heard Police Officer W., thirty-five

years old.  He stated that when he and his colleague B. had informed

the first applicant that a blood test would be necessary, she intended

getting away.  He would not say that she ran away; however, his

colleague B. had then declared that the first applicant was under

arrest.  As regards the first applicant's child, they had agreed that

her child should be taken to the house.  They had accompanied her

across the yard to the door.  He could not remember whether he was

already holding the first applicant at that time.  He remembered that

he had walked on her right side, and that, in front of the door, he had

stood on her right side near to the wall.  The hinges of the door were

at the right-hand side and it opened towards the outside.  The first

applicant had then opened the door, let her child enter and attempted

to follow while, at the same time, trying to close the door.  As he had

suspected the first applicant might try to do something like that, he

had held onto the door, and his colleague B. had held tightly onto the

first applicant.  It had been completely dark beside the door.  He

could not therefore exclude that the first applicant had knocked her

head at the wall or elsewhere.  He had not noticed anything like this.

He and his colleague had maintained eye-contact.

48.   Upon questioning, he could not remember whether there had been

a lamp throwing any light onto the yard.

49.   Police Officer W. further stated that the first applicant had

vehemently resisted her arrest.  He had taken her left arm and twisted

it around behind her back and he had had to grab her tightly in order

to do this.  They had then hand-cuffed her arms behind her back.  He

could not remember whether they had done so in the yard or whether they

had first taken her to the street and then hand-cuffed her.  It was

only later that they noticed the first applicant's head injury and they

had not noticed how she had obtained it.

50.   When questioned, Police Officer W. stated that the first

applicant had requested the removal of her hand-cuffs.  However, he

could not remember whether she had requested that the hand-cuffs should

be removed because she could not bear to have them on as he did not

remember her complaining about any pain, in particular about suffering

any pain in her left shoulder.  After her arrest the first applicant

had not calmed down, but had been noisy.  She also had repeatedly

attempted to resist accompanying the police officers, without success

however.  He could not remember when the applicants' neighbour had

arrived.  Furthermore, he could not remember whether he or his

colleague B. had been holding onto the first applicant while they had

been waiting for the second police car.

51.   When questioned further, Police Officer W. stated that he did not

remember either whether the first applicant had bent forward suddenly

while she was still hand-cuffed.  He repeated that the first applicant

had resisted her arrest and had been lashing out when he had twisted

her arm around to her back.  He could not remember whether she had been

lashing out with both arms.  He assumed that the first applicant had

not intended hitting him or his colleague B.  The situation had  in any

case been too turbulent.  He did not think that the first applicant had

attempted to throw herself to the ground.  He could not remember

whether the yard had been wet or covered with snow or icy.  He did not

think that the yard had been icy.

52.   Police Officer B. intervened and stated that he remembered that

it had been slippery, and he assumed that this had been due to ice.

53.   Upon further questioning, Police Officer W. denied that he had

pushed the first applicant, in particular her head against the wall.

54.   Following a particular instruction about the meaning of a

testimony and the role of a witness as well as the right to refuse

testimony, the Regional Court then heard the second applicant.

55.   The second applicant stated that she remembered the incident with

her mother and the police in their yard.  She had seen her mother

blowing into an apparatus belonging to the police, and had then heard

that her mother would have to go for a blood test.  She and her mother

had then accompanied the police officers across the yard because she

was supposed to go to their neighbour.  Her mother had rung the

doorbell and opened the door using a key.  She had then gone into the

house and closed the door behind her.  She did not know that one of the

police officers had forcibly kept the door open.  After having closed

the door she had looked through the glass-panels in the door into the

yard.  She explained that one of the glass-panels was simple glass, as

it had been once replaced by her father.  She had therefore been able

to see that one of the police officers had pushed her mother's head

against the wall.  She emphasised that the police officer had

repeatedly pushed her mother's head against the wall next to the door

using his hand.  The officer concerned had blond hair.  Her mother and

the police officer had been close to the door, the distance having been

approximately one metre.  She herself had not been right in front of

the glass-panel.  She subsequently had run upstairs to their neighbour.

56.   The second applicant further explained that when her mother had

rung the doorbell and opened the door, she had been standing to her

right.  Her mother had opened the door only a little bit, and she had

just been able to get in.  She then had immediately closed the door

behind her.

57.   The second applicant also stated that she did not recognise

Police Officers B. and W.  It had been quite dark in the yard.

However, there had been light in the staircase.  She could not remember

whether there had also been a lamp in the yard.

58.   When questioned, the second applicant confirmed that she had

immediately closed the door.  Her mother had looked into the corner

next to the door when the police officer pushed her.  The second

applicant added that she seemed to remember that the dark-haired police

officer had a beard.  She had not seen that one of the police officers

had twisted her mother's arm around and behind her back.

59.   On 30 October 1987 the Detmold Regional Court dismissed the first

applicant's compensation claims against the Land of North-Rhine

Westphalia.

60.  In its judgment, the Regional Court first summarised the

established facts.  It stated in particular that Police Officers B. and

W. had noticed the first applicant after she had ignored a red traffic

light, and that the breathalyser test had failed several times.  When

informing the first applicant that she had to accompany them for a

blood test, the Police Officers had gained the impression that the

first applicant had intended to leave the entrance and move towards the

adjacent back-yard.  Thereupon the Police Officer B. had taken hold of

the first applicant and informed her that she was provisionally

arrested.  The first applicant had then asked to take her daughter, at

that time eight years old, to their neighbour.  The Police Officers had

agreed and accompanied the applicants to the back-door at the end of

the yard which was more than 60 m long.  The first applicant had rung

her neighbour's doorbell and at the same time opened the door using a

key.  Her daughter had slipped through the door into the house, whereas

the first applicant was held fast by the Police Officers who twisted

her arm behind her back, and hand-cuffed her arms on her back.  The

first applicant had then been taken to the police car.

61.   The Regional Court noted that the first applicant had thereby

suffered a bruise to her right temple, a concussion and a contusion of

the left shoulder-joint.

62.   The Regional Court then summarised the submissions of the first

applicant and the defendant.  The first applicant had in particular

alleged that she had never attempted to escape; that she had not

attempted to enter the house after her daughter; that the Police

Officer W. had grabbed her arm, pulled her around and repeatedly

knocked her head against a wall and repeatedly pulled her hand-cuffed

hands upwards, thereby causing a terrible pain.

63.   The Regional Court found that the injuries suffered by the first

applicant in the course of her arrest by Police Officers B. and W. did

not give rise to a compensation claim.

64.   The Regional Court considered that the first applicant's

provisional arrest had in itself not been unlawful.  The Police

Officers, in the circumstances concerned, could reasonably have assumed

that the first applicant intended to abscond.  Had the first applicant

succeeded in entering the house without the Police Officers,

considerable difficulties could conceivably have arisen, either by her

refusing them entry into her apartment, or by her consuming or claiming

to have consumed more alcohol, thereby rendering the determination of

her blood alcohol content level impossible or appreciably more

difficult.

65.   The Regional Court further considered that the first applicant,

as plaintiff, had failed to prove that the police officers had injured

her by a use of force disproportionate to the aim pursued, namely to

secure the ensuing investigations.  As regards her bruise, the

testimonies of the first applicant's daughter and of Police Officers

B. and W. were contradictory, and all three witnesses had an interest

in the outcome of the proceedings.  The applicants' neighbour had not

been able to confirm that one of the police officers had pulled upwards

the first applicant's arms behind her back;  the statement of the

witness that the first applicant had repeatedly bent forward would not

necessarily lead to such a conclusion.

66.   The Regional Court further found that it could not accept the

first applicant's version as very probable.  It did not seem unlikely

that the first applicant had injured herself while resisting the

attempts to hand-cuff her.  She could have thereby hit her head against

the wall, and the contusion of her shoulder could have occurred when

her arm was twisted behind her back and the hand-cuffs put on.

67.   On 12 September 1988 the Hamm Court of Appeal (Oberlandes-

gericht) dismissed the first applicant's appeal (Berufung).  It

confirmed in particular the Regional Court's taking and evaluation of

evidence.

68.   On 8 February 1989 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the first applicant's

constitutional complaint (Verfassungsbeschwerde) on the ground that it

offered no prospect of success.  The Constitutional Court considered

in particular that the Court of Appeal's evaluation of the evidence did

not appear arbitrary or otherwise in violation of constitutional law.

B.    Relevant Domestic Law and Practice

69.   According to S. 113 para. 1 of the German Criminal Code (Straf-

gesetzbuch), anybody who resists, by force or threat of violence, or

who physically attacks a public officer or a soldier of the Federal

Armed Forces authorised to enforce laws, regulations, judgments, court

decisions or orders, in the execution of such official acts, shall be

punished by imprisonment for a term not to exceed two years or by a

fine.  According to S. 113 para. 3 the offence shall not be punished

if the official act concerned was unlawful, even if the offender

mistakenly believed the act to be lawful.

70.   Under S. 223 para. 1 of the Penal Code deliberate bodily harm is

rendered punishable by imprisonment for a term not to exceed three

years or by a fine, as is negligent bodily harm under S. 230.

71.   S. 316 of the Criminal Code provides in particular that anybody

driving a  vehicle in public traffic who, due to his consumption of

alcoholic beverages or other intoxicants, is not capable of driving his

vehicle safely, shall be punished by imprisonment for a term not to

exceed one year or by a fine.  Anybody having negligently committed the

said offence shall be punished in the same way.

72.   S. 24 a of the Road Traffic Act (Straßenverkehrsgesetz) provides

that anybody driving a motor vehicle in road traffic commits a

"regulatory offence" (Ordnungswidrigkeit), if he has a blood alcohol

content level equal to or above 0.8 per mille or has in his body a

quantity of alcohol resulting in such a blood alcohol content level,

and shall be punished by a fine not to exceed DM 3,000.  Anybody

committing this offence negligently shall also be punished.

73.   With regard to official liability, S. 839 para. 1 of the Civil

Code (Bürgerliches Gesetzbuch) provides that, if an official, with

wilful intent or negligently, commits a breach of his official duties

towards a third party, he shall compensate the third party any damage

resulting therefrom.  S. 34 of the Basic Law (Grundgesetz) provides

that, if any person, in the exercise of a public office entrusted to

him, violates his official obligations towards a third party, liability

shall rest in principle with the state or the public body which employs

him.

74.   The order of a blood test is regulated in S. 81 a of the Code of

Criminal Procedure (Strafprozeßordnung) according to which a physical

examination of any person charged with having committed an offence may

be ordered for the establishment of facts relevant to the proceedings

concerned.  For this purpose, without consent of the person concerned,

blood samples may be taken and other physical interventions be

conducted by a physician according to the rules of medical science for

the purposes of examination, if there is no risk of detriment to the

person's health.  Such examinations are ordered by a judge, in case of

danger in delay, also by the public prosecutor's office or its

assistant civil servants, inter alia police officers of a particular

higher rank.

75.   S. 127 para. 1, first sentence, of the Code of Criminal Procedure

provides that anybody, without court order, may provisionally arrest

an offender apprehended in the criminal act or tracked immediately

afterwards, if the offender is susceptible to abscond or if it is not

possible to identify him or her immediately.  Under S. 127 para. 2  the

Public Prosecutor's Office or their assistant servants, in case of

danger in delay, may effect a provisional arrest also under the

conditions of an arrest warrant or an order of detention in a

psychiatric hospital.

76.   SS. 35 et seq. of the North-Rhine Westphalia Police Act (Polizei-

gesetz) of 1980 governed the use of compulsory measures by police

authorities in the Land North-Rhine Westphalia at the time in question

in the present case (reform of the Police Act in 1990).  S. 40 of the

Police Act 1980 (corresponding to S. 62 of the Act 1990) provided that

a person could be hand-cuffed, if this person would presumably resist

an instruction by the police officers concerned or escape.

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

77.   The following complaints were declared admissible:

-     the first applicant's complaint that, in the presence of the

second applicant, she was subjected to inhuman and degrading treatment

by the police upon her arrest;

-     the first applicant's complaint that the above treatment violated

her right to respect for her private and family life;

-     the second applicant's complaint that the above treatment of her

mother in her presence also subjected herself to inhuman and degrading

treatment;

-     the second applicant's complaint that the above treatment of her

mother in her presence violated her right to respect for her private

and family life.

B.    Points at issue

78.   Accordingly, the issues to be determined are:

-     whether the first applicant, in the course of her arrest, was

subjected to inhuman or degrading treatment within the meaning of

Article 3 (Art. 3) of the Convention;

-     whether, in the course of her arrest, the first applicant's right

under Article 8 (Art. 8) of the Convention has been violated;

-     whether the second applicant, for the same reasons, was subjected

to inhuman or degrading treatment within the meaning of Article 3

(Art. 3) of the Convention;

-     whether, having regard to the circumstances of the first

applicant's arrest in her presence, the second applicant's right under

Article 8 (Art. 8) has been violated.

C.    The alleged violation of the first applicant's Convention rights

I.    Article 3 (Art. 3) of the Convention

79.   The first applicant alleges a breach of Article 3 (Art. 3) of the

Convention which provides as follows:

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

80.   The first applicant submits that in the course of her arrest

she was beaten up by the police in presence of her daughter and thereby

suffered serious and lasting injuries.  She considers that the police

action as described by her amounted to inhuman and degrading treatment.

In particular, her injuries were not unintentional and accidental

consequences of a lawful use of force by State authorities.  She had

not given any reason to such disproportionate use of force.

81.   The Government consider that the measures taken by Police

Officers B. and W. did not reach the degree of seriousness required in

the case-law of the Convention organs to justify invoking Article 3

(Art. 3).  They rely on the facts as established in the domestic court

decisions and maintain that the first applicant's arrest was lawful,

and in particular the physical force necessary and proportionate to

carry out the arrest.  Referring to Article 2 para. 2 (b) (Art. 2-2-b)

of the Convention, they submit that the hand-cuffing of a provisionally

arrested person strongly resisting arrest could not constitute a breach

of the Convention even in case of accidental, exceptional injuries.

82.   The Commission recalls that ill-treatment must attain a certain

level of severity if it is to fall within the scope of Article 3

(Art. 3).  The assessment of this minimum is, in the nature of things,

relative; it depends on all the circumstances of the case, such as the

duration of the treatment, its physical or mental effects and, in some

cases, the sex, age and state of health of the victim etc. (Eur. Court

H.R., Ireland v. the United Kingdom judgment of 18 January 1978,

Series A no. 25, pp. 65-67, paras. 162, 167; Tyrer judgment of

25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30; Soering

judgment of 7 July 1989, Series A no. 161, p. 39, para. 100).

83.   Such treatment causing, if not actual bodily injury, at least

intense physical and mental suffering falls into the category of

inhuman treatment within the meaning of Article 3 (Art. 3).  It is

degrading if it arouses in the person subjected thereto feelings of

fear, anguish and inferiority capable of humiliating and debasing this

person and possibly breaking his or her physical or moral resistance

(Eur. Court H.R., Ireland v. the United Kingdom judgment, loc. cit.,

p. 68, para. 174; Guzzardi judgment of 6 November 1980, Series A

no. 39, p. 40, para. 107; Abdulaziz, Cabales and Balkandali judgment

of 28 May 1985, Series A no. 94, p. 42, paras. 90-91; Soering judgment,

loc. cit.).

84.   The Commission notes that the alleged ill-treatment of the first

applicant occurred in the early evening of 28 January 1986.  In the

course of a traffic check, Police Officers B. and W. suspected the

first applicant of drunken driving.  After no clear results were

obtained from a breathalyser test, she was arrested and taken to

hospital for a blood test as regards her blood alcohol content level.

The first applicant was at the time in question 48 years old, she was

working as a social welfare officer and had no entries in her criminal

record.  She was accompanied by her then eight-year-old daughter, the

second applicant.  Police Officers B. and W. were at that date about

27 and 34 years old, respectively.

85.   As regards the particular circumstances of this arrest, the

Commission is confronted with different versions.

86.   The applicants state that, when informed that a blood test was

necessary, the first applicant wanted to take her daughter, the second

applicant, to a neighbour.  She went to the back door, rang her

neighbour's doorbell and opened the door.  One police officer then

grabbed her, twisted her left arm behind her back while she was turned

around and hit her head on the corner of a window-sill.  The police

officers hand-cuffed her.  She lost consciousness for a short while.

She recovered at the police car and noticed a severe pain in her left

shoulder which was pressed backwards by one of the police officers.

87.   The Police Officers B. and W. have made statements concerning the

events in question on several occasions, namely Police Officer B. in

his report of 29 January 1986, and both Police Officers at the hearing

before the Detmold Regional Court.

88.   In his first statement, Police Officer B. stated in particular

that, from the very beginning of the traffic check, the first applicant

had given the impression that she intended to escape and that she had

been very aggressive.  At the back door of the house, it had been

necessary forcibly to prevent her from escaping into the house.  Due

to her violent resistance, Police Officer W. had taken the first

applicant's left arm and twisted it behind her back, while he had kept

a tight hold onto her right arm.  Further physical force had been

necessary to hand-cuff her.  Moreover, when she was taken to the police

car, she had attempted to throw herself to the ground.  Police Officer

B. also mentioned the first applicant's wound at her right temple, but

gave no indication as to its cause.

89.   In their statements before the Detmold Regional Court the two

Police Officers gave a similar outline of the events.

90.   Police Officer B. also stated that the first applicant had

shouted more or less hysterically, but had not complained about pain.

Upon questioning, Police Officer B. denied that the first applicant had

hit her head against a wall when she was torn outside.  He remembered

the first applicant's injury at her right cheek but stated that he

could not explain the cause of the injury.

91.   Police Officer W. stated that the first applicant had vehemently

resisted her arrest.  He had taken her left arm and twisted it around

behind her back and he had had to grab her tightly in order to do this.

They had then hand-cuffed her arms behind her back.  He denied that he

had pushed the first applicant, in particular her head against the

wall.  He had not noticed how the first applicant had been injured, in

particular whether she had hit her head against the wall or elsewhere.

He would not, however, exclude anything like this.  He described the

situation of her arrest as very turbulent.  In particular the first

applicant had been lashing out, but had not intended hitting them.  He

also remembered that the first applicant had requested the removal of

her hand-cuffs, and could not exclude that she had made complaints

about pain, in particular about pain in her left shoulder.

92.   In the context of the first applicant's official liability

proceedings against the Land North-Rhine Westphalia, the employer of

the two Police Officers concerned, the Detmold Regional Court, in its

judgment of 30 October 1987, found that the first applicant's injuries

suffered in the course of her arrest by Police Officers B. and W. did

not give rise to a compensation claim.

93.   The Regional Court, having heard the two Police Officers, the

applicants' neighbour and the second applicant as witnesses, considered

in particular that the first applicant's provisional arrest had in

itself not been unlawful.  The Police Officers had reasonably assumed

that the first applicant intended to abscond, and that considerable

difficulties would have arisen, had she not been arrested.  The first

applicant, as plaintiff, had failed to prove that, in the course of

this arrest, the police officers had injured her by a use of force

disproportionate to the aim of securing the ensuing investigations.

The testimonies of the witnesses were partly contradictory, or did not

confirm her allegations.  Moreover, it found that it could not accept

the first applicant's version as very probable.  It did not seem

unlikely that she had injured herself upon her resistance to the hand-

cuffing.

94.   The Regional Court's taking and assessment of evidence was

confirmed upon appeal by the Hamm Court of Appeal on 12 September 1988.

The Federal Constitutional Court, upon the first applicant's

constitutional complaint, found that the evaluation of evidence did not

appear arbitrary or otherwise in violation of constitutional law.

95.   The Commission has examined the question whether the first

applicant, on the occasion of her arrest, suffered ill-treatment

contrary to Article 3 (Art. 3), on the basis of any evidence possibly

relevant in this respect, and subjected the evidence obtained at the

national level to independent assessment taking due account of the

arguments of the parties including any reference to the findings of the

competent national authorities (cf. Stocké v. the Federal Republic of

Germany, Comm. Report 12.10.89, para. 171, with reference to Colak v.

the Federal Republic of Germany, Comm. Report 6.10.87, paras. 143-144;

No. 10044/82, Dec. 10.7.84, D.R. 39 pp. 162 et seq., 168). There was

no new evidence brought before the Commission calling for any further

investigation with a view to ascertaining the facts under Article 28

para. 1 (a) (Art. 28-1-a) of the Convention.

96.   The Commission notes that the first applicant's provisional

arrest was based on S. 127 of the Code of Criminal Procedure, and the

use of compulsory measures, in particular hand-cuffing, was lawful if

necessary according to SS. 35 et seq., 40 of the North-Rhine Westphalia

Police Act of 1980.  For the purposes of the criminal investigations

against her a blood test could be ordered under S. 81 (a) of the German

Code of Criminal Procedure.  Driving under the influence of alcohol

could constitute the offence of drunken driving under S. 316 of the

German Penal Code or a regulatory offence under the Road Traffic Act,

depending on the blood alcohol content level.  The first applicant was

later fined DM 500 for a regulatory offence on that count.

97.   The Commission proceeds on the basis of the finding of the

Detmold Regional Court, in its judgment of 30 October 1987, that the

first applicant's provisional arrest had been lawful.  The Police

Officers had reasonably assumed that the first applicant intended to

abscond, and that considerable difficulties would have arisen, had she

not been arrested.  The applicant's allegations to the contrary related

mainly to her real intentions, not to the situation in the back-yard

from the officers' point of view.  They do not disclose any clear non-

observance of the relevant law by the arresting officers.

98.   As regards the question whether the force used by Police Officers

B. and W. against the first applicant for the purpose of her arrest was

strictly proportionate, the Commission attaches particular weight to

the injuries suffered by the first applicant in the course of her

arrest (Tomasi v. France, Comm. Report 11.12.90, paras. 92-100, 105).

99.   The Commission notes that in February 1986 Dr. S., an internal

specialist, certified that he had examined the applicant on 29 January

and noticed abrasions, a bruise on her right cheek-bone of about

3 x 5 cm, large bruises of about 10 cm to her right arm, considerable

problems in moving her left shoulder, and bruises on that shoulder.

He also stated that she would suffer long-term problems, in particular

with her left shoulder.  The first applicant was certified as ill until

8 February 1986.  Furthermore, on 10 February 1986, Dr. K., the head

surgeon at the local hospital, certified that he had examined the first

applicant on 30 January 1986.  His diagnosis was identical to that of

Dr. S.  The Detmold Regional Court, in its judgment of 30 October 1987,

also found that the first applicant had suffered a bruise to her right

temple, a concussion and a contusion of the left shoulder-joint.

100.  The respondent Government have not explained that the first

applicant's injuries resulted from a use of force proportionate in the

circumstances of her arrest.  They regarded these injuries as

accidental and regrettable consequences of an arrest which had as such

been lawful.  Their submissions in this respect were based upon the

findings of the Detmold Regional Court in its judgment of

30 October 1987 and upon the statements of Police Officers B. and W.,

heard as witnesses in these proceedings.

101.  However, the Commission finds that the Regional Court's judgment

merely contained assumptions as to the possible cause of the first

applicant's injuries other than an excessive use of force by Police

Officers B. and W.  In their testimonies at the hearing before the

Regional Court, Police Officers B. and W. could not explain the

possible cause of the first applicant's bruise on her right temple.

Their statements, which did not show any considerable discrepancies,

reflect a substantial use of force in order to arrest the first

applicant provisionally.  Their description as to the resistance

offered by the first applicant does not establish the necessity of

using such force in hand-cuffing and taking her to the police car as

to cause the above-mentioned injuries.  The domestic courts did not

attach special importance to the detailed statements of the second

applicant and of the applicants' neighbour which apparently confirmed

the first applicant's account.  In this context, the neighbour's

reference to unexplained sudden movements forward by the first

applicant is particularly noticeable.  This seems to indicate that the

first applicant's allegations as to the Police Officers' lifting her

arms which were hand-cuffed on her back could be correct.

102.  The Commission, in examining whether there has been a violation

of Article 3 (Art. 3), cannot share the approach to the question of

proof and assessment of evidence, as expressed by the respondent

Government on the basis of the Regional Court's judgment.

103.  The Commission recalls that in cases where injuries occurred in

the course of police custody, it is not sufficient for the Government

to point at other possible causes of injuries, but it is incumbent on

the Government to produce evidence showing facts which cast doubt on

the account given by the victim and supported by medical evidence (cf.,

Ireland v. the United Kingdom, Comm. Report 25.1.76, Eur. Court H.R.,

Series B no. 23-I, p. 413; see also, mutatis mutandis, Tomasi v.

France, Comm. Report, loc. cit., para. 99; Eur. Court H.R., Bozano

judgment of 18 December 1986, Series A no. 111, p. 26, para. 59).

104.  Such considerations likewise apply in cases where a person is

arrested by police authorities and thereby subjected to their power.

In the present case, having regard to the injuries suffered by the

first applicant in the course of her arrest, her allegations of a

disproportionate use of force seem plausible in the absence of any

evidence or convincing other explanation.

105.  In these circumstances, the Commission, even assuming that the

first applicant attempted to abscond and offered some resistance to her

provisional arrest, considers that the force used by the two Police

Officers to arrest a woman of 48 years, who was accompanied by her

minor daughter, was disproportionate to the aim of securing

investigations against her in respect of a traffic offence.

106.  The enforcement of the first applicant's arrest in a place

accessible to the public with excessive force by two Police Officers

also created in the first applicant feelings of fear and inferiority

capable of humiliating her.  The Commission here notes that, at an

early stage of the arrest, the second applicant was present, at a later

stage a neighbour.

107.  The first applicant was thereby subjected to treatment, which,

in view of the injuries, went beyond the inevitable element of

suffering connected with a legitimate arrest in the context of police

investigations, and amounted to inhuman and degrading treatment

contrary to Article 3 (Art. 3).

      Conclusion

108.  The Commission concludes, by 10 votes to 5, that there has been

a violation of Article 3 (Art. 3)of the Convention in respect of the

first applicant.

II.   Article 8 (Art. 8) of the Convention

109.  The first applicant has also invoked Article 8 (Art. 8) of the

Convention in respect of the above allegations.  Article 8 (Art. 8)

reads as follows:

      "1.  Everyone has the right to respect for his private and

      family life, his home and his correspondence.

      2.   There shall be no interference by a public authority with

      the exercise of this right except such as is in accordance with

      the law and is necessary in a democratic society in the interests

      of national security, public safety or the economic well-being

      of the country, for the prevention of disorder or crime, for the

      protection of health or morals, or for the protection of the

      rights and freedoms of others."

110.  Having regard to its above conclusion under Article 3 (Art. 3)

(see para. 108), the Commission does not consider it necessary to

examine the first applicant's complaint under Article 8 (Art. 8) of the

Convention.

      Conclusion

111.  The Commission concludes, by 10 votes to 5, that no separate

issue arises under Article 8 (Art. 8) of the Convention in respect of

the first applicant.

D.    The alleged violation of the second applicant's Convention rights

I.    Article 3 (Art. 3) of the Convention

112.  The second applicant complains that having regard to the use of

force against her mother in her presence, she suffered inhuman and

degrading treatment within the meaning of Article 3 (Art. 3) of the

Convention.

113.  The Commission finds that, although the course of the first

applicant's arrest had repercussions on the second applicant's state

of mind and created feelings of fear, these negative effects of the

events at issue do not constitute inhuman or degrading treatment coming

within the ambit of Article 3 (Art. 3).

      Conclusion

114.  The Commission concludes, by 14 votes to 1, that there has been

no violation of Article 3 (Art. 3) of the Convention in respect of the

second applicant.

II.   Article 8 (Art. 8) of the Convention

115.  The second applicant further alleges a breach of Article 8

(Art. 8) of the Convention in that the use of force against her mother

in her presence violated her right to respect for her private and

family life.

116.  The Commission recalls that the notion of private life covers the

physical and moral integrity of the person (cf. Eur. Court H.R., X and

Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11,

para. 22; No. 8239/78, Dec. 4.12.78, D.R. 16 p. 184, 189; No. 8278/78,

Dec. 13.12.79, D.R. 18 p. 154; No. 10435/83, Dec. 10.12.84, D.R. 40

p. 251; Costello-Roberts v. the United Kingdom, Comm. Report 8.10.91,

para. 49).

117.  The Commission finds that, although the measures in question were

not directed against the second applicant, the use of force against a

mother in the presence of her minor child amounts to a negative

experience with considerable repercussions on the child's state of

mind.  The Commission, having regard to the second applicant's

uncontested statements that she watched major parts of her mother's

forcible arrest and noting that she considerably suffered from what she

had seen, finds that there was also an interference with the second

applicant's right to respect for her private life.

118.  In respect of the first applicant, the Commission has found above

(see para. 105) that, taking into account all circumstances, the force

used by Police Officers B. and W. to arrest the first applicant was

disproportionate to the aim of securing criminal investigations against

her in respect of a traffic offence, and amounted to a violation of

Article 3 (Art. 3) of the Convention.

119.  Having regard to the comparable situation, no other finding can

be reached as regards the interference with the second applicant's

right under Article 8 para. 1 (Art. 8-1), which was thus not justified

under Article 8 para. 2 (Art. 8-3).

      Conclusion

120.  The Commission concludes, by 8 votes to 7, that there has been

a violation of Article 8 (Art. 8) of the Convention in respect of the

second applicant.

E.    Recapitulation

121.  The Commission concludes, by 10 votes to 5, that there has been

a violation of Article 3 (Art. 3) of the Convention in respect of the

first applicant (para. 108).

122.  The Commission concludes, by 10 votes to 5, that no separate

issue arises under Article 8 (Art. 8) of the Convention in respect of

the first applicant (para. 111).

123.  The Commission concludes, by 14 votes to 1, that there has been

no violation of Article 3 (Art. 3) of the Convention in respect of the

second applicant (para. 114).

124.  The Commission concludes, by 8 votes to 7, that there has been

a violation of Article 8 (Art. 8) of the Convention in respect of the

second applicant (para. 120).

Secretary to the Commission                President of the Commission

      (H.C. KRÜGER)                              (C.A. NØRGAARD)

               DISSENTING OPINION BY MM. C.A. NØRGAARD,

                S. TRECHSEL, H. DANELIUS AND B. MARXER

      We have voted against the conclusions in paras. 108, 111 and 120

for the following reasons.

1.    We consider that the treatment to which the first applicant was

exposed, although serious, did not have the severity necessary to bring

it under the scope of Article 3 of the Convention.  On the other hand,

the treatment was in our view an interference with the first

applicant's right to respect for her private life for which there was

no justification under Article 8 para. 2 of the Convention.

Consequently, we find that Article 8 was violated in regard to the

first applicant.

2.    As regards the second applicant, we do not consider that the fact

that she became a witness to the circumstances of her mother's arrest -

which was based upon a suspicion of her mother having driven a car

under the influence of alcohol with her then eight year old daughter

(the second applicant) as a passenger - constitutes an interference

with the second applicant's right to respect for her private life.

Consequently, there was, in respect of the second applicant, no

violation of Article 8 of the Convention.

         DISSENTING OPINION BY MM. F. MARTINEZ AND J.-C. GEUS

      We consider that, in respect of the second applicant, there was

no violation of Article 8 of the Convention for the reasons indicated

in the dissenting opinion of Mr. Nørgaard and others.

                DISSENTING OPINION BY Mr. L. LOUCAIDES

      I am unable to agree with the conclusion of the majority that

there has been no violation of Article 3 of the Convention in respect

of the second applicant.

      I believe that a complainant can be considered a victim of

inhuman treatment not only as a result of acts directed against him

personally, but also as a result of acts directed against somebody

else, but which have immediate adverse effects on the complainant

himself of such severity as to cause him suffering amounting to inhuman

treatment.

      This is what, in my opinion, has happened in the case of the

second applicant.

      The use of violence of the kind described in the Commission's

Report by two policemen against the mother of the second applicant, an

eight year old girl, the only other person present, must inevitably

have caused severe suffering to her.  In the circumstances of the case

this amounted in my opinion to inhuman treatment.  The suffering was

a foreseeable and immediate consequence of the arbitrary acts of the

two policemen who at the time knew of the presence of the second

applicant.

      Therefore I also find a breach of Article 3 in respect of the

second applicant and voted against finding a violation of Article 8 of

the Convention as no separate issue arises under this provision.

               DISSENTING OPINION BY Mr. M.P. PELLONPÄÄ

      I consider that, in respect of the first applicant, there was a

violation not of Article 3 but of Article 8 of the Convention for the

reasons indicated in the dissenting opinion of Mr. Nørgaard and others.

                 CONCURRING OPINION BY Mr. E. BUSUTTIL

      I have voted for a violation of Article 3 in this case on the

basis that the first applicant's treatment by the police amounted to

degrading treatment.

      In my view, the treatment accorded to her did not attain the

level of severity required to bring it within the ambit of inhuman

treatment as interpreted in the case-law of the Convention organs.  On

the other hand, it is clear to me that she was subjected to humiliating

treatment in the presence of her eight-year-old daughter and eventually

hand-cuffed for resisting the police, which the Detmold Public

Prosecutor's Office later considered to be a minor offence attracting

no public interest in prosecution.

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                             Item

_________________________________________________________________

11 July 1989                     Introduction of the application

11 September 1989                Registration of the application

Examination of admissibility

14 February 1990                 Commission's decision to invite

                                 the Government to submit observations

                                 on the admissibility and merits of

                                 the application

28 May, 22 August 1990           Government's observations

28 August 1990                   Applicant's observations in reply

7 March 1991                     Commission's decision to hold an oral

                                 hearing

9 July 1991                      Oral hearing on admissibility and

                                 merits, Commission's decisions to

                                 declare the application admissible

                                 and that no action is required with